Tuesday, December 15, 2009

legality of intersex surgery

Non consensual genital mutilation is ethically abhorrent, this begs the question, is there any grounds to render it illegal?

To drag their misguided surgeon to court for restitution, and perhaps set a legal precedent against genital mutilation is a pipe dream for many intersex activists. The trouble is that it is very much an uphill legal battle. Since intersex surgery is accepted medical procedure, it is not considered malpractice. Also, since the surgery is done on infants, by the time they are mature enough to realize what has happened and speak out, the statute of limitations has long passed. Because of all of these difficulties, it would be hard to find a lawyer to take such a case. It would also be almost impossible to find expert testimony, doctors know the cost, both financially and professionally, of a lawsuit, and will circle the wagons to protect their own. They have been doing this to the intersex community for decades, in spite of a warning by the Yale Law and Policy Review that the conditions for consent are arguably not given.

A favorable legal trend for intersexuals might be starting. In Germany Christiare Volling successfully sued the surgeon who removed her uterus and ovaries without her consent.

With a favorable lawsuit seeming highly improbable, there has been some movement to create legislation to change this. An example was an attempt to add intersex to the Federal Prohibition of Female Genital Mutilation Act. So far congress has not taken notice of the issue.

Right now there is only one country in the world that has made intersex surgery illegal, Columbia. They declared that intersexed people are a minority that need special protection against discrimination and harm from their differences. The Colombian Constitutional Court claims that parental consent depends on the urgency of the situation, the invasiveness of the procedure, and the age and autonomy of the child in question. The Colombian model allows parents to consent only if all the risk, and alternatives are made known, and even they they have to give consent in writing several times over a period of time (not panicky decisions), and they cannot consent after the child turns 5. We can only hope that the US will see the wisdom of the Columbia law.